Opinion
E051070
09-27-2011
THE PEOPLE, Plaintiff and Respondent, v. JESUS ALBERT CASTILLO, Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and William M. Wood, Marilyn L. George, and Barry J. Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF135543)
OPINION
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed as modified in part and reversed in part with directions.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and William M. Wood, Marilyn L. George, and Barry J. Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jesus Albert Castillo was a member of a gang called 5150 MR. He and a fellow gang member were in the territory of a rival gang when they encountered a stranger named Joseph Faciane. Defendant asked Faciane where he was from; Faciane denied being in a gang. Nevertheless, defendant said he was from "5150" and prepared to punch Faciane. Faciane, however, got in the first blow; as the fight went on, he knocked defendant down. Defendant then pulled out a knife and stabbed Faciane, as well as Faciane's brother-in law, Gerard Phillips, who came to his aid. Faciane lived; Phillips died.
In defendant's first trial, the jury found him guilty of the attempted murder of Faciane, but it found that the attempted murder was not premeditated. It also found certain gang allegations not true. It deadlocked on the murder of Phillips.
In his second trial, the jury found defendant guilty of the murder of Phillips. It also found that the murder was of the first degree and that various gang allegations were true.
Defendant contends:
1. As a matter of double jeopardy and collateral estoppel, the findings of the first jury, in connection with the attempted murder, that defendant did not premeditate and that the gang allegations were not true should have barred the second jury from finding, in connection with the murder, that defendant did premeditate and that the gang allegations were true.
2. Because the gang allegations in the second trial should have been barred, the trial court erred by admitting gang evidence.
3. The gang expert was improperly allowed to testify that Faciane was truthful.
4. The trial court erred by allowing the prosecutor to question defendant about his use of an interpreter.
5. The trial court erred by denying defendant's motion for a new trial, which was based on newly discovered evidence that Faciane, contrary to his testimony, was under the influence of alcohol and drugs at the time of the stabbings.
We agree that the findings of the first jury were constitutionally entitled to collateral estoppel effect and that they should have precluded the second jury from finding that defendant premeditated or that any gang allegations were true. We reject defendant's other contentions. We will modify the conviction accordingly, and we will remand for resentencing.
I
FACTUAL BACKGROUND
The following facts were shown at defendant's second trial.
A. The Case for the Prosecution. 1. The stabbings.
On February 16, 2007, in the late afternoon, four people parked outside an apartment complex in the Arlanza neighborhood in Riverside.
Victims Gerard Phillips and Joseph Faciane stayed in the car while Faciane's sister went inside to buy some marijuana. Phillips was Faciane's brother-in-law. Faciane was 18; Phillips was 34.
Faciane needed to "take a leak," so he got out of the car and walked through the apartment complex, heading for some dumpsters in the back. He noticed two men (later identified as defendant and Raul Delcid) walking nearby. They made eye contact with him. Faciane put his head down. When he looked up again, the men were "mad-dogging" him, so he mad-dogged them back.
As Faciane was going past, defendant said, "Where you from?" Faciane replied, "I don't bang." Defendant then announced that he was "from 5150." He "jumped at [Faciane] as if he was going to throw a swing." Faciane responded by preemptively throwing the first punch. A fistfight ensued.
Faciane "caught [defendant] with a good one," knocking him down. Delcid then waded in. He and Faciane "exchanged a few swings, . . . just one or two . . . ." Defendant got up, "tackle[d]" Faciane from behind, and started stabbing Faciane.
At that point, Phillips arrived on the scene. He started "scuffling" with defendant. Faciane, realizing that he was wounded, started walking back to the car. When he looked back, he saw Phillips wrestling with defendant.
Phillips got back to the car about five seconds after Faciane did. He too, had been stabbed. He had four wounds: a stab wound four to six inches deep in the right side, which penetrated the liver and the right kidney; two shallow stab wounds in the left upper chest, which did not penetrate the chest cavity; and a slash wound to the upper right arm. He died of his wounds.
Faciane had been stabbed four times, once in the chest and three times in the abdomen. The chest wound penetrated a lung and was potentially fatal. One of the abdominal wounds penetrated the liver. However, he survived.
When the police first interviewed Faciane, he lied about the fact that he was at the apartment complex to buy marijuana; he told them he was there to drop off his sister. He also told them, falsely, that defendant had hit him first. At trial, Faciane was further impeached with his admission that he had been arrested after trying to break into a shipping container.
Defendant first became a suspect when a student named Juan Arteaga told a school resource officer that, during a party, "[defendant] showed up, along with somebody else, and said they had just stabbed somebody out in front during a fight."
At trial, Arteaga testified that he had a friend named Beto who lived in the apartment complex. Beto was a member of a gang called 5150 MR. Through Beto, Arteaga had gotten to know defendant, who was also a member of 5150 MR. Arteaga himself was a member of West Side Verdugo.
Arteaga testified that on February 16, 2007, in the evening, while he was "hanging out" with Beto, defendant and a second man arrived. One of the two men had a knife. (Arteaga admitted testifying previously that it was defendant who had the knife.) Beto asked Arteaga to "check for any cops"; he looked and saw "cops all over." He then overheard defendant telling Beto about a fight and a stabbing.
2. Gang evidence.
Detective James Simons, a gang expert, identified 5150 MR as a gang. It was the product of two gangs, 5150 and Mexican Royalty, that had "cli[qu]ed up," or merged. It had 40 to 45 members. In Detective Simons's opinion, defendant was an active member of 5150 MR. His moniker was "Troubles." Delcid was also an active member of 5150 MR.
The primary activities of 5150 MR included assaults with firearms and knives, weapons violations, drug sales, vandalism, and graffiti. Members of 5150 MR had been convicted of murder, attempted murder, and assault with a deadly weapon.
In response to a hypothetical question, Detective Simons testified that the murder was committed in association with 5150 MR, as well as for the benefit of 5150 MR. He explained that 5150 MR, a newer gang, was trying to take over areas already claimed by older gangs such as Arlanza 13. Thus, 5150 MR and Arlanza 13 were rivals. The apartment complex was in Arlanza 13's territory.
According to Detective Simons, "respect is everything to a gang." A gang gains respect through violence and intimidation. A new gang has to be "very violent very quickly," or it will cease to exist. A violent crime also gains the perpetrator respect from fellow gang members.
When a gang member asks, "Where are you from?," it means, "What gang do you claim?" This is called "hitting up." "More often than not, it results in violence." Even if the person who is hit up denies being a gang member, he may be attacked. Gang members may hit up someone in rival territory as a way of establishing the gang in that territory.
B. The Case for the Defense.
Defendant testified on his own behalf. As of February 16, 2007, he was 17. He testified that he and Delcid were on the way to get pizza; they were taking a shortcut through the apartment complex when he noticed two men coming toward him.
The shorter of the two men (i.e., Faciane) mad-dogged him; he mad-dogged the man back. As the two groups went past each other, defendant "felt something," "like a brush." He turned and said, "What's up?" Faciane laughed, but then hit him. Defendant fell to the ground; both of the other men started hitting and kicking him.
Initially, defendant testified that it was Faciane who asked him, "[W]hat's up[?]" Then he testified that he asked Faciane this. Finally, on cross-examination, he testified, "What I said was, 'What's up'? And that's when he said it too . . . ."
Defendant admitted telling the police, "First one came. And when that first guy hit me, the other one was coming . . . ." He claimed, however, that, because the interrogation was in English, not Spanish (see part VI, post),he "interpreted" his own words incorrectly.
Defendant thought they were going to kill him. He had a knife in his pocket that he used at work. He took it out, opened it, and "started just swinging like crazy." He was not aiming. Faciane left; Phillips kept hitting defendant. Defendant managed to get up and run away.
On cross-examination, defendant admitted that he had dropped off his other tools after work, but not the pocketknife. He then admitted, "I always have that in my pocket because I used it all the time."
Apparently, the first two times that defendant demonstrated how he swung the knife, he simply moved it from side to side. The third and fourth times, however, when the prosecutor was trying to establish, for the record, that he was moving it from side to side, he said, "Not necessarily," and made more of a stabbing motion.
Defendant admitted being a Mexican Royalty "wannabe," but he testified that he had never been jumped in. He admittedly had an "MR" tattoo on his chest. He testified that this stood "[m]ainly" for his grandmother's initials, but also for Mexican Royalty. He admitted that he had previously testified that the tattoo related solely to his grandmother and had nothing to do with Mexican Royalty; he explained that he had been "scared" and "nervous" at the time. He also admitted that, when the police asked him about the tattoo, he said that it stood for Mexican Royalty.
Defendant denied saying either "Where are you from?" or "5150." He could not explain how Faciane could know that he was affiliated with 5150 MR.
Defendant denied being called "Troubles." He could not explain why a girl he knew had written "Troubles" on a picture of him. Defendant also denied knowing either "Beto" or Arteaga, and he denied going to an apartment after the stabbings. He admitted telling the police that he knew a Hispanic male his age who lived at the apartment complex. At trial, however, he denied knowing any such person.
C. Rebuttal.
Detective James Brandt had investigated "numerous" cases involving stabbings. He testified that, when an assailant is moving a knife back and forth, the victim's wounds will tend to be long slash wounds rather than deep stab wounds.
II
PROCEDURAL BACKGROUND
Defendant was charged as follows:
Count 1: Murder of Phillips (Pen. Code, § 187, subd. (a)), with a gang special circumstance (Pen. Code, § 190.2, subd. (a)(22)), a gang enhancement (Pen. Code, § 186.22, subd. (b)), and a personal deadly weapon use enhancement (Pen. Code, § 12022, subd. (b)(1)).
Count 2: Attempted murder of Faciane, which was allegedly willful, deliberate, and premeditated (Pen. Code, §§ 187, subd. (a), 664), with a gang enhancement, a personal deadly weapon use enhancement, and a personal infliction of great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)).
Count 3: Gang participation (Pen. Code, § 186.22, subd. (a)).
When defendant was first tried, the jury deadlocked on count 1 (murder of Phillips), and the trial court declared a mistrial on this count. The jury found defendant guilty on count 2 (attempted murder of Faciane); however, it found the premeditation allegation not true. It found the enhancements for personal deadly weapon use and personal infliction of great bodily injury to be true, but it found the gang enhancement to be not true. Finally, it found defendant not guilty on count 3 (gang participation).
In defendant's second trial, the jury found him guilty on count 1 (murder of Phillips); it found the murder to be of the first degree, and it found the gang special circumstance to be true. It also found the gang enhancement and the personal deadly weapon use enhancement to be true.
Defendant was sentenced to life without the possibility of parole, plus 12 years.
III
THE DOUBLE JEOPARDY EFFECT OF THE FIRST JURY'S VERDICTS
Defendant contends that, as a matter of double jeopardy and collateral estoppel, the first jury's findings should have had preclusive effect in the second trial.
Specifically, he contends that its findings that he was not guilty of gang participation and that the gang enhancement in connection with the attempted murder of Faciane was not true barred the gang enhancement in connection with the murder of Phillips, as well as the gang special circumstance.
He also contends that the first jury's findings that the attempted murder of Faciane was not willful, deliberate, and premeditated barred the finding that the murder of Phillips was of the first degree and, again, the gang special circumstance.
A. Forfeiture.
Preliminarily, the People respond that defense counsel forfeited these issues by failing to raise them in the trial court. "The general rule is that 'former jeopardy [must] be affirmatively pleaded, . . . or any claim on that ground is not preserved for review. [Citation.]' [Citations.]" (People v. Gurule (2002) 28 Cal.4th 557, 646.)
Defendant, however, also contends that his trial counsel's failure to raise the issues constituted ineffective assistance of counsel.
" . . . '"'Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.'" [Citation.]' [Citation.] If the record on appeal '"'sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected,"' and the 'claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.' [Citation.]" (People v. Vines (2011) 51 Cal.4th 830, 876.)
Here, "[i]f, indeed, double jeopardy applied, we can conceive of no legitimate tactical reason for failing to raise it. Accordingly, regardless of whether the defense was waived, we must decide whether it had merit." (People v. Morales (2003) 112 Cal.App.4th 1176, 1185 [Fourth Dist., Div. Two]; accord, People v. Scott (1997) 15 Cal.4th 1188, 1201.)
B. General Legal Principles.
"Under the doctrine of collateral estoppel, a party cannot relitigate an issue of ultimate fact that was determined by a valid and final judgment in a previous lawsuit between the same parties. [Citations.] In criminal cases, this doctrine is an aspect of the Fifth Amendment's protection against double jeopardy. [Citations.]" (People v. Yokely (2010) 183 Cal.App.4th 1264, 1272-1273.)
Some courts have questioned whether collateral estoppel can apply to a retrial in the same proceeding. (E.g., People v. Barragan (2004) 32 Cal.4th 236, 253.) Recently, the United States Supreme Court definitively answered that question, "Yes." In Yeager v. United States (2009) ____ U.S. ____ [129 S.Ct. 2360, 174 L.Ed.2d 78], in the defendant's first trial, the jury acquitted him of fraud but deadlocked on charges of insider trading. (Id. at pp. 2363-2364.) The Supreme Court held that, to the extent that the fraud acquittals necessarily decided that the defendant was not in possession of any insider information, a retrial on the insider trading charges was barred. (Id. at pp. 2366-2370.) It declared: "[F]or double jeopardy purposes, the jury's inability to reach a verdict on the insider trading counts was a nonevent and the acquittals on the fraud counts are entitled to the same effect as [an] acquittal [for a single offense]." (Id. at p. 2367.)
C. The Gang Enhancements.
In the first trial, the jury found defendant guilty of the attempted murder of Faciane, but it found the gang enhancement in connection with the attempted murder of Faciane to be not true. A gang enhancement applies to any felony "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (Pen. Code, § 186.22, subd. (b)(1).) Defendant argues that this finding should have precluded a true finding on the gang enhancement in connection with the murder of Phillips.
Defendant also argues, alternatively, that his acquittal on count 3 (gang participation) should have precluded a true finding on this gang enhancement. Because we agree with his main argument, we do not reach this argument.
The People, however, basically argue that the collateral estoppel aspect of double jeopardy does not apply to enhancements. They argue that, because the first jury hung on the murder of Phillips (count 1), defendant remained in continuing jeopardy on that charge, necessarily including any associated enhancements. They also argue that an enhancement is a sentencing allegation, not a substantive offense.
Under People v. Seel (2004) 34 Cal.4th 535, federal double jeopardy protections apply to any sentencing allegation that increases the punishment beyond the statutory maximum. (Id. at pp. 545-550.) Seel recognized that, in Monge v. California (1998) 524 U.S. 721 [118 S.Ct. 2246, 141 L.Ed.2d 615], the United States Supreme Court had held that the federal double jeopardy clause did not apply to prior conviction enhancement allegations; indeed, the court had indicated that it did not apply to any sentencing allegations. (Seel, at pp. 541, 542, 545.) Thereafter, however, the United States Supreme Court had held, in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] that, for purposes of the right to trial by jury, a sentencing allegation that increased the punishment beyond the statutory maximum was the "'functional equivalent'" of a substantive offense. (Seel, at pp. 539 & fn. 2, 545-547.) Seel concluded that such a sentencing allegation is also the functional equivalent of a substantive offense for purposes of double jeopardy. (Id. pp. 545-548.) Apprendi, however, had carved out an exception for prior conviction allegations. (Seel, at p. 545.) Hence, Monge — although still good law — was limited to prior convictions. (See Seel, at pp. 548-549.)
The cases that the People cite are not apposite. For example, in People v. Pettaway (1988) 206 Cal.App.3d 1312, the evidence showed that the defendant shot one victim, who survived, and either shot or aided and abetted the shooting of a second victim, who died. At the defendant's first trial, the jury found him guilty of attempted murder and murder. In connection with the attempted murder, it found a personal firearm use enhancement and a personal infliction of great bodily injury enhancement true, but in connection with the murder, it found these same enhancements not true. (Id. at p. 1315.) In other words, it implicitly found that he was the aider and abettor rather than the perpetrator of the murder.
The murder conviction was reversed on appeal, based on instructional error. (People v. Pettaway, supra, 206 Cal.App.3d at pp. 1315-1316.) On remand, the defendant sought to preclude the prosecution from retrying him for murder on the theory that he was the shooter and to limit it to retrying him on the theory that he was an aider and abettor. (Id. at p. 1316.) On appeal, the prosecution, for its part, conceded that it could not retry the personal firearm use enhancement or the personal infliction of great bodily injury enhancement. (Ibid.)
The Court of Appeal held that the not-true findings on the enhancements did not preclude the prosecution from retrying the defendant as the shooter. It reasoned, in part: "It is fundamental that double jeopardy will not bar retrial of a defendant who has succeeded in overturning his conviction. [Citation.] This rule rests on the premise that the original conviction is nullified and 'the slate wiped clean.' [Citations.]" (People v. Pettaway, supra, 206 Cal.App.3d at p. 1321.) However, it also reasoned that a not-true finding on an enhancement was distinguishable from an acquittal on an offense: "Several California cases clearly demonstrate the adjunctive nature of an enhancement." (Id. at p. 1322.) "A use enhancement is relevant only to punishment. It is not an element of the substantive offense charged. When, as here, the defendant's earlier conviction of murder is reversed on appeal and the defendant is subject to retrial, a finding on an enhancement allegation by the first jury is superfluous to a determination of the guilt or innocence of the charged offense at the second trial." (Id. at p. 1325.)
The issue in this case is not whether a not-true finding on an enhancement has a preclusive effect on the underlying offense; we cannot reason, as the court in Pettaway did, that the conviction on the offense underlying the not-true finding has been reversed. Here, defendant's conviction of the attempted murder of Faciane, along with the accompanying not-true finding, still stands. Rather, the issue is whether a not-true finding on an enhancement has a preclusive effect on a similar enhancement. Thus, it is more closely akin to the issue in Pettaway as to whether the not-true findings in the first trial had a preclusive effect on the enhancements in the second trial — and the People conceded that they did. Even if Pettaway were on point, however, it would not be controlling in light of the California Supreme Court's subsequent holding in Seel.
The People also cite People v. Anderson (2009) 47 Cal.4th 92. There, however, the first jury found the defendant guilty of the substantive sexual offense but deadlocked on a "one strike" sentencing allegation. (Id. at p. 103.) The Supreme Court merely held that double jeopardy did not bar a retrial of the one strike allegation. It relied on the "well[-]settled" rule (id. at p. 103) that a charge on which the jury deadlocks can be retried. (Id. at pp. 108-112.) However, it reaffirmed its holding in Seel that the double jeopardy clause applies to penalty allegations. (Anderson, at pp. 105-107.) Anderson does not apply here because the first jury did not deadlock on either the gang enhancement or the underlying charge of attempted murder; it found the gang enhancement not true.
Finally, the People cite Sattazahn v. Pennsylvania (2003) 537 U.S. 101 [123 S.Ct. 732, 154 L.Ed.2d 588]. There, however, as in Anderson, the first jury found the defendant guilty of the substantive offenses but hung with respect to the penalty. (Sattazahn, at pp. 104-105.) Thus, it is similarly distinguishable.
In the People's view, these cases are relevant because here, the first jury did hang on count 1 (murder of Phillips); thus, it did not return any verdict on the gang enhancement attached to that count. Nevertheless, it did return a not-true finding on the gang enhancement attached to count 2 (attempted murder of Faciane).
That finding can have preclusive effect, even though it related to a different victim. This is apparent from the United States Supreme Court's opinion in Ashe v. Swenson (1970) 397 U.S. 436 [90 S.Ct. 1189, 25 L.Ed.2d 469]. There, six men playing poker were robbed. The defendant was tried for the robbery of just one of the poker players. (Id. at p. 437.) At that trial, the evidence that there had been a robbery was "unassailable," but the evidence that the defendant was one of the robbers was "weak." (Id. at p. 438.) The defendant was acquitted. (Id. at p. 439.) The defendant was then tried for the robbery of a second poker player. (Ibid.) This time, he was convicted. (Id. at pp. 439-440.)
The Supreme Court held that the collateral estoppel aspect of double jeopardy barred the second trial. "[T]he rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to 'examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' The inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.' [Citation.]" (Ashe v. Swenson, supra, 397 U.S. at p. 444, fn. omitted.)
In the case before it, it observed, "The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not." (Ashe v. Swenson, supra, 397 U.S. at p. 445.) "Once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery of [the second poker player] in the hope that a different jury might find that evidence more convincing. The situation is constitutionally no different here, even though the second trial related to another victim of the same robbery." (Id. at p. 446, italics added.)
Here, similarly, a single trier of fact could not rationally find that a gang enhancement applied to the stabbing of Phillips, but not to the stabbing of Faciane. The confrontation started when defendant mad-dogged Faciane. Defendant asked Faciane where he was from. Defendant then said he was from "5150" and jumped at Faciane. This led to a fight in which defendant stabbed Faciane. Defendant stabbed Phillips only because Phillips tried to intervene in the fight. It might arguably be rational to find that a gang enhancement applied to the stabbing of Faciane, but not to the stabbing of Phillips; it would not be rational, however, to find the reverse.
The People suggest that a jury could have found that defendant stabbed Phillips to protect Delcid, his fellow gang member, and thus that a gang enhancement applied to the stabbing of Phillips, but not to the stabbing of Faciane. The evidence, however, showed that Delcid was involved in the fight with Faciane; it was while Delcid and Faciane were trading blows that defendant waded back in and stabbed Faciane. By contrast, there was no evidence that Delcid was involved in the fight with Phillips or that Phillips ever so much as posed a threat to Delcid. Thus, once again, it might be logical to find that a gang enhancement applied only to the stabbing of Faciane but not that it applied only to the stabbing of Phillips.
The evidence on both of these points was substantially the same at the first trial.
In sum, much as in Ashe, once the first jury determined that there was at least a reasonable doubt as to one or more elements of the gang enhancement, the prosecution could not introduce the same or different gang evidence in a second trial in the hope that a different jury might find that evidence more convincing. Accordingly, the gang enhancement must be stricken.
D. The Gang Special Circumstance.
In the first trial, the jury found defendant not guilty of gang participation (count 3). This crime is committed by "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . ." (Pen. Code, § 186.22, subd. (a).)
Defendant argues that this verdict should have precluded a true finding on the gang special circumstance, which applies if "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang . . . , and the murder was carried out to further the activities of the criminal street gang." (Pen. Code, § 190.2, subd. (a)(22).) We agree.
Defendant also argues that the not-true finding on the gang enhancement to the attempted murder of Faciane should have precluded a true finding on the gang special circumstance. Once again (see fn. 5, ante, p. 15), we do not reach this argument.
For purposes of the gang participation charge, the first jury was free to consider defendant's stabbing of Phillips, not merely his stabbing of Faciane. Evidently it concluded either that (1) 5150 MR was not a criminal street gang, (2) defendant did not actively participate in 5150 MR, (3) defendant did not know that members of 5150 MR had engaged in a pattern of criminal gang activity, or (4) defendant did not willfully promote, further, or assist the stabbing of Phillips. Only the third finding — lack of knowledge — might fail to bar the gang special circumstance. On this record, however, a rational jury could not have found that this element alone was lacking. There was uncontradicted evidence that the gang's "primary activities" included drug sales, assaults with a firearm or other deadly weapon, and weapons violations. It was also uncontradicted that gang members commit crimes to gain respect from other gang members, as well as from outsiders. Thus, it was essentially uncontested that, if 5150 MR was a gang at all, and if Castillo was an active participant in it, he had to know that other members of the gang had committed assorted qualifying felonies. (See Pen. Code, § 186.22, subd. (e).)
Again, the evidence on these points was substantially the same in the first trial.
We therefore conclude that the gang special circumstance must be stricken.
E. The Degree of the Murder.
In the first trial, the jury found defendant guilty of the attempted murder of Faciane (count 1) but that the attempted murder was not willful, deliberate, and premeditated. Defendant argues that this should have precluded a finding that the murder of Phillips (count 2) was of the first degree. Again, we agree.
As Ashe directs, we must examine the jury's finding, "not . . . with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality." (Ashe v. Swenson, supra, 397 U.S. at p. 444, fn. omitted.) The evidence made it impossible to conclude that defendant premeditated the murder of Phillips but did not premeditate the attempted murder of Faciane. The evidence of premeditation was stronger, if anything, with respect to Faciane. Mad-dogging Faciane, asking him where he was from, saying "5150," and jumping at him all indicated a decision in advance to fight him (if not necessarily to kill him). Even then, however, it was not until Faciane knocked defendant down and started fighting with Delcid that defendant drew his knife and began stabbing Faciane with it. Evidently the first jury determined that defendant formed the intent to kill Faciane, but only on the spur of the moment.
There was no additional evidence that defendant premeditated with respect to Phillips. When Phillips arrived, Faciane managed to get away from defendant; he started to walk back to the car but looked back and saw defendant and Phillips "scuffling." "[F]ive seconds" after Faciane got back to the car, Phillips, too, got back to the car. Faciane estimated that the whole incident, from the time he left the car until he arrived back at the car, lasted 30 seconds. Another passenger in the car similarly estimated that Faciane was gone for one to three minutes.
The evidence in the first trial was substantially similar.
The People argue that the jury could have inferred premeditation from the location and depth of Phillips's stab wounds. The placement of a victim's wounds can be sufficient evidence of an intent to kill. (E.g., People v. Avila (2009) 46 Cal.4th 680, 701702.) The People cite no authority, however, for the proposition that it can be sufficient evidence, standing alone, of premeditation. Even assuming it could be, Phillips's wounds did not particularly show premeditation. Only one, to his right side, was serious. The two in his left chest were not deep enough to penetrate the chest cavity. The fourth was a slash wound to his upper right arm. And finally, as defendant points out, the placement of Faciane's wounds — one stab wound in the chest and three in the abdomen — showed more deliberation than the placement of Phillips's. Thus, there was no evidence that the stabbing of Faciane was not premeditated, but the stabbing of Phillips was.
In Ashe, the first jury necessarily determined that the defendant did not rob any of the victims. We must conclude that here, similarly, the first jury necessarily determined that defendant did not premeditate as to either of the victims. Accordingly, the first jury's finding that the attempted murder of Faciane was not premeditated barred the second jury from finding that the murder of Phillips was premeditated. Defendant's conviction must be reduced to second degree murder.
IV
PREJUDICE FROM GANG EVIDENCE
In light of the fact that a retrial on the gang enhancement and the gang special circumstance should have been barred (see parts III.C and III.D, ante), defendant argues that the trial court erred by admitting gang evidence.
Technically, the issue is not whether the trial court erred. It did not. Defense counsel never argued that these gang allegations were barred and never objected to the evidence. Hence, there is no ruling by the trial court for us to review.
Rather, the issue is "retroactive misjoinder" — i.e., whether the joinder of the gang allegations, which in retrospect, was erroneous, was so prejudicial with respect to the properly joined charge of murder that the murder conviction, too, should be reversed. (See generally In re Ponce De Leon (2004) 117 Cal.App.4th 1116, 1121, and federal cases cited.) Indeed, because we reached the propriety of the gang allegations only by way of ineffective assistance of counsel, the issue could also be viewed as whether the ineffective assistance of counsel was also prejudicial with respect to the murder charge.
Defendant cannot show prejudice, because the gang evidence would have been admissible to show motive, even in the absence of any gang charges or allegations. "Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related. [Citation.] „"[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence." [Citations.]' [Citations.]" (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168.) "Accordingly, when evidence of gang activity or affiliation is relevant to motive, it may properly be introduced even if prejudicial. [Citation.]" (People v. Garcia (2008) 168 Cal.App.4th 261, 275.) This is true even where there are no gang allegations. (See id. at p. 268.)
Moreover, while the gang evidence tended to show that defendant had a motive to start a fight with Faciane, there was no evidence that Faciane had any motive to start a fight with defendant. Thus, the gang evidence tended to corroborate Faciane's testimony and to contradict defendant's.
Defendant relies on People v. Albarran (2007) 149 Cal.App.4th 214. There, "two male Hispanics with shaved heads" shot at a house while a party was going on inside. (Id. at p. 217.) The owner of the house was a member of the Pierce Boys gang (id. at pp. 217, 221); the defendant was a member of the 13 Kings gang. (Id. at p. 220.) There was contradictory evidence with respect to whether the defendant was one of the shooters. (Id. at pp. 218-219, 221.) The trial court granted the defendant's motion for a new trial on the alleged gang enhancements, based on insufficiency of the evidence, but denied a new trial on the underlying offenses. (Id. at p. 222.)
The appellate court reversed, holding that, absent the gang enhancements, the gang evidence was irrelevant and prejudicial. (People v. Albarran, supra, 149 Cal.App.4th at pp. 223-232.) It rejected the argument that the evidence was relevant to show motive. It explained that, although the shooting occurred at a gang member's house, his "gang did not have any known or relevant gang rivalries." (Id. at p. 227; see id. at p. 221.) Also, there was no evidence that the shooting was committed to gain "respect": "[The gang expert] noted a gang member gains such respect if his identity (or the identity of his gang) becomes known to the victim(s), within the gang community and/or the neighborhood. Yet this shooting presented no signs of gang member's efforts in that regard — there was no evidence the shooters announced their presence or purpose — before, during or after the shooting. There was no evidence presented that any gang members had 'bragged' about their involvement or created graffiti and took credit for it." (Id. at p. 227.)
Here, by contrast, there was ample evidence of a gang-related motive for the stabbings. There was a known rivalry between 5150 MR and Arlanza 13; the gang expert testified that 5150 MR could establish itself by committing violent crimes in Arlanza 13's turf. Also, it was reasonable to expect the crime to gain respect both for defendant individually and for his gang. He was with Delcid, a fellow gang member. He claimed "5150." Immediately after the shooting, he went to a fellow gang member's apartment and told him about the stabbings.
Defendant also argues that, as a matter of collateral estoppel, the first jury's not-true findings on the gang allegations should have precluded the prosecution from introducing evidence that the murder was gang motivated. Not so.
"Both th[e California Supreme Court] and the United States Supreme Court have held that principles of double jeopardy, including its collateral estoppel component, permit the admission of otherwise proper evidence of a prior crime even if the person had been entirely acquitted of that prior crime. [Citations.] This is so because the defendant must be found guilty beyond a reasonable doubt of a crime to be convicted of it, but other crimes evidence need be proven only by a preponderance of the evidence. [Citations.]" (People v. Steele (2002) 27 Cal.4th 1230, 1245, fn. 2.)
The same reasoning applies to evidence of motive. Motive is not an element of most crimes, including murder. (People v. Solomon (2010) 49 Cal.4th 792, 816.) The People were not required to prove a motive for the crime at all, much less to prove it beyond a reasonable doubt. (See People v. Foster (2010) 50 Cal.4th 1301, 1347-1348 [unlike ultimate facts, evidentiary facts need not be proved beyond a reasonable doubt].) Accordingly, the fact that a prior jury found that the People failed to prove a gang motive beyond a reasonable doubt did not preclude them from introducing evidence of it.
We therefore conclude that the admission of the gang evidence was not prejudicial because it was relevant to motive.
V
THE GANG EXPERT'S TESTIMONY
THAT FACIANE WAS TELLING THE TRUTH
Defendant contends that the gang expert was improperly allowed to testify that Faciane was truthful.
A. Additional Factual and Procedural Background.
During defense counsel's cross-examination of the gang expert, there was this exchange:
"[Q.] Your opinion is based, of course, on the assumption that everything that [Faciane] has told us is the complete truth, right?
"A. I believe he's telling the truth, yes. [¶] . . . [¶]
"Q. Do you know him?
"A. I've met him on several occasions, yes.
"Q. Does he cheat on his taxes? Does he lie to his mom? How can you say he's a trustworthy guy?
"A. Based on his prior testimony.
"Q. So he talked about the same thing twice, said basically the same thing, so you think that makes him reliable; is that
"A. Based on the facts of this case, the investigation, yes.
"Q. Okay.
"A. And other people's statements to corroborate what he says, yes.
"Q. You're familiar with the part where he originally lied to the police?
"A. About why they went? He didn't want to tell the police he went to go b[u]y marijuana, yes."
B. Analysis.
Defense counsel forfeited the asserted error by eliciting the assertedly inadmissible evidence himself. Defendant claims that the question only asked whether the gang expert was assuming that Faciane was telling the truth; the expert then improperly volunteered that he believed that Faciane was telling the truth. This contrived distinction is unconvincing. Presumably an expert believes the assumptions underlying his or her opinion; otherwise he or she could not hold the opinion. The gang expert merely answered the question he was asked.
Even assuming the answer went beyond the scope of the question, however, defense counsel forfeited the error by failing to move to strike. Defendant argues that a motion to strike would have been futile. The evidence, however, was neither critical nor inflammatory; presumably the jury would have been able to obey an admonition to disregard it. If not, defense counsel could have moved for a mistrial. He did not.
Defendant therefore argues that defense counsel's conduct constituted ineffective assistance of counsel. We reject this contention, because defense counsel had an obvious tactical purpose. He wanted to make the point that the expert's opinion assumed that Faciane was telling the truth; thus, if the jury concluded that Faciane was not telling the truth, it should reject the expert's opinion. Moreover, he brought out the fact that the expert had only a limited basis for his belief that Faciane was telling the truth and was disregarding or discounting evidence that Faciane might actually be lying.
The expert's belief that Faciane was telling the truth was hardly the "bombshell" that defendant claims it was. He had just finished testifying that, in his opinion, defendant was trying to benefit his gang, and that this opinion was based, in part, on the fact that defendant and Delcid were "the primary aggressors." It would have been obvious to the jury that he believed Faciane's account and not defendant's. Moreover, the expert did not claim to have any basis for believing that Faciane was telling the truth that the jury did not; he relied on the fact that Faciane had testified consistently over time and that other witnesses had corroborated his account. Hence, defense counsel's tactical decision was not unreasonable.
VI
CROSS-EXAMINATION OF DEFENDANT ABOUT HIS NEED FOR AN
INTERPRETER
Defendant contends that the trial court erred by allowing the prosecutor to cross-examine him about his need for an interpreter.
A. Additional Factual and Procedural Background.
In the second trial, defendant asked to have a Spanish interpreter when he testified. The trial court ruled that he would have to have the interpreter throughout the trial, not only when he testified. It explained: "[I]f he needs an interpreter to understand, he should have one. I don't want him to be in a situation where he misses something or misunderstands something that's going on during the trial. A lot of things that will happen during the trial he may be questioned about by other witnesses' statements and testimony. . . . I don't think it can be kind of a half-and-half, it needs to be all or nothing."
Thus, defendant testified through a Spanish interpreter. On direct, he admitted that he was bilingual, but he explained that he was more comfortable communicating in Spanish.
At the beginning of defendant's cross-examination, the prosecutor asked him his "real reason" for wanting an interpreter. Defense counsel objected, "It's irrelevant and argumentative." The trial court overruled the objection. Defendant responded again that he preferred to communicate in Spanish.
The prosecutor proceeded to establish that defendant had never requested an interpreter before, including during police questioning, during the preliminary hearing, during "numerous" court appearances, and during the first trial. Defendant explained, in part, that he was able to understand English better than he was able to speak it. He also explained that he had, in fact, had trouble both understanding and speaking English in prior proceedings, which was why he had finally decided to request an interpreter.
The prosecutor also asked:
"Q. And as you sat there, you started with the first ten minutes of my opening statement with those getting interpreted; is that right?
"A. Yes.
"Q. And then the rest of the time you took the headphones off and the interpreter sat in the audience and didn't interpret anything else for you; is that right?
"[DEFENSE COUNSEL]: Objection. Beyond the scope.
"THE COURT: . . . [O]verruled.
"THE WITNESS: I didn't understand very well."
Finally, the prosecutor asked:
"Q. The real reason you want an interpreter is because you want time to think about your answers right now; is that right?
"[DEFENSE COUNSEL]: Objection. Relevance.
"THE COURT: As phrased, sustained."
B. Analysis.
1. Improper comment on a constitutional right.
Defendant argues that he had a constitutional right to an interpreter, and therefore the prosecutor's line of questioning constituted improper comment on a constitutional right. He analogizes to cases in which a prosecutor asks the jury to draw an adverse inference from a defendant's exercise of the right to remain silent after arrest (see generally Doyle v. Ohio (1976) 426 U.S. 610 [96 S.Ct. 2240, 49 L.Ed.2d 91]) or the right not to testify at trial (see generally Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106]).
The People note that defense counsel did not object on this ground at trial; they claim that he forfeited this argument. Defendant also argues, however, that defense counsel's failure to object on this ground constituted ineffective assistance of counsel. Assuming that defendant's constitutional claim is valid, we cannot imagine any tactical purpose that defense counsel could have had for failing to raise it at trial. Accordingly, we address the issue under this rubric.
Under the California Constitution, "[a] person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings." (Cal. Const., art. I, § 14.) Our Supreme Court has stated that the "underpinnings" of the right to an interpreter also "include a defendant's rights to due process, to confrontation, to effective assistance of counsel, and to be present at trial. [Citation.]" (People v. Romero (2008) 44 Cal.4th 386, 410.)
There is a significant difference, however, between this constitutional right and those rights on which the prosecution is forbidden to comment, such as the right to remain silent or the right not to testify: Not every defendant has the right to an interpreter. This right exists only conditionally, depending on the existence of a preliminary fact, namely, that the defendant is not sufficiently fluent in English. (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1453.) Moreover, the defendant has the burden of proving this preliminary fact. (Id. at pp. 1454-1456.)
Here, the prosecutor was not asking the jury to draw an adverse inference from defendant's exercise of his right to an interpreter. Rather, he was asking the jury to draw an inference, from defendant's failure to exercise the right to an interpreter on other occasions, that he was adequately fluent in English. If the jury agreed, then defendant simply had no right to an interpreter. The prosecutor was therefore free to ask the jury to further infer, from defendant's invocation of this nonexistent right, that he was actually trying to buy time to think about his answers. If, however, the jury disagreed — if it refused to conclude that defendant was adequately fluent in English — then defendant was not harmed by this entire line of questioning.
Defendant argues that "[t]he court had already determined there was good cause for an interpreter," and therefore "[t]he prosecutor's questions were . . . irrelevant . . . ." He cites no authority, however, for the proposition that the trial court's finding was binding on the jury. When a preliminary factual question is relevant to both the admission of evidence and to guilt, the jury is not bound by the trial court's determination. (See Evid. Code, § 405, subd. (b).) By analogy, the jury should not be bound by the trial court's determination of defendant's need for an interpreter, either. Any other result would arguably violate the People's right to trial by jury. (See generally Cal. Const., art. I, § 16; People v. Partner (1986) 180 Cal.App.3d 178, 182-183.)
2. Asking the jury to draw a false inference.
Defendant also argues that the prosecutor committed misconduct by asking the jury to draw a false inference. Defendant wanted to use an interpreter only while he testified; the trial court, however, had forced him to have an interpreter throughout the trial. He concludes that the prosecutor's questions about the fact that he "took the headphones off' for most of the trial were misleading.
We fail to see the logic in this. The prosecutor's point was that, even though an interpreter was available throughout the trial, defendant had actually used the interpreter only when he testified. One reasonable inference from this (though certainly not the only reasonable inference) was that defendant did not really need an interpreter at all. It did not matter why an interpreter was available throughout the trial. Whether defendant had requested the interpreter, or whether the trial court had required him to use the interpreter, was irrelevant.
We therefore see nothing improper about these questions.
VII
MOTION FOR NEW TRIAL BASED ON
NEWLY DISCOVERED EVIDENCE THAT FACIANE WAS DRUNK
Defendant contends that the trial court erred by denying his motion for new trial, which was based on newly discovered evidence that Faciane had been under the influence of alcohol and drugs at the time of the crimes.
A. Additional Factual and Procedural Background.
Defendant filed a motion for new trial. In it, he argued, among other things, that he was entitled to a new trial based on newly discovered evidence.
The following facts are taken from the evidence introduced in support of defendant's motion for new trial.
In discovery, the prosecution had provided the defense with medical records regarding Faciane's treatment after he was stabbed. These records did not include any toxicology test results. Defense counsel admitted, however, that they did include "a barely legible, handwritten note in the margin of one page where a doctor had ordered a toxicology screen . . . ." (Hyphen omitted.)
The prosecutor represented (although not under oath) that he had subpoenaed records from the hospital and had turned over all the records that the hospital had produced, so the hospital must not have produced the blood test results. The trial court found "no evidence . . . that somehow the People withheld a portion of the medical records and didn't give it to the defense."
At trial, Faciane testified that, on the day of the crimes, he had not consumed any alcohol, narcotics, or marijuana.
After defendant was convicted in his second trial, he told defense counsel that he believed that Faciane was lying and "must have been drunk . . . ." As a result, defense counsel subpoenaed Faciane's medical records. When produced, these included eight pages not produced in discovery, which showed that, at 6:45 p.m., Faciane's blood alcohol level had been 75 mg/dL, or 0.075 percent. This meant that, at the time of the stabbing, his blood alcohol level had been approximately 0.095 percent. He had also tested positive for opiates and cannabinoids.
Faciane had been given Demerol for his pain, which could explain the presence of opiates.
--------
The trial court denied the motion. It explained, in part: "[T]he defense, at least, had knowledge . . . before the trial started[] that there might have been alcohol and drugs involved . . . ."
It also explained: " . . . Faciane, though he may have been challenged, he clearly threw the first blow. And nothing about alcohol or drugs would ever change that. . . . He became the aggressor . . . . So wh[at] was at issue in this case was what happened thereafter.
"Again, I go back to his testimony being consistent from trial to trial. There was no lack of recollection . . . , which would seem to indicate [no] impairment . . . ."
It concluded: " . . . I don't really see that benefit there would have been other than, perhaps, a minor impeachment of the witness. [¶] . . . I don't know if it would have had much impact given how the evidence was presented."
B. Analysis.
"'"'The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.'" [Citations.] "'[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background.'" [Citation.]
"'In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: "'1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.'" [Citations.]' [Citation.] 'In addition, "the trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable." [Citation.]' [Citation.]" (People v. Howard (2010) 51 Cal.4th 15, 42-43.)
Here, the trial court could reasonably find that, with reasonable diligence, the defense could have discovered the evidence before trial. Defense counsel went looking for toxicology test results only because defendant told him that Faciane must have been drunk. Defendant already knew this, however, before trial. Also, as defense counsel admitted, the medical records produced in discovery did indicate that toxicology testing had been ordered. He implied that this was not reasonably discoverable before trial because it was handwritten, barely legible, and in the margin. After trial, however, it was still handwritten, barely legible, and in the margin, yet defense counsel managed to find it. In sum, all of the information that enabled defense counsel to locate the evidence after trial was already available to him before trial.
Defendant argues that defense counsel's failure to discover the evidence before trial constituted ineffective assistance. However, he evidently did not tell his counsel before trial that Faciane must have been drunk. The handwritten annotation is not in evidence; thus, we cannot say that defense counsel should have discovered it even before defendant tipped him off that there was a question about Faciane's sobriety.
Separately and alternatively, the trial court could reasonably conclude that the evidence would not bring about a different result on retrial. Defendant argues that it could be used to impeach Faciane. In general, however, "'[a] new trial on the ground of newly discovered evidence is not granted where the only value of the newly discovered testimony is as impeaching evidence' or to contradict a witness of the opposing party. [Citations.]" (People v. Hall (2010) 187 Cal.App.4th 282, 299.)
Defendant nevertheless maintains that newly discovered impeachment evidence can be grounds for a new trial in an appropriate case, citing People v. Randle (1982) 130 Cal.App.3d 286 and People v. Huskins (1966) 245 Cal.App.2d 859.
In Randle, the victim testified that the defendant forced her to orally copulate him, then gave her $10. (People v. Randle, supra, 130 Cal.App.3d at pp. 289-290.) The defendant, on the other hand, testified that he accepted the victim's offer of sex for money. (Id. at pp. 290-291.) The newly discovered evidence consisted of declarations by 20 different people who knew the victim and who could testify that she had a history of trading sex for money or drugs, that she had a history of dishonesty and theft, and/or that she had given conflicting accounts of the crime. (Id. at p. 292.)
The appellate court held that the trial court had erred by denying the defendant's motion for new trial. (People v. Randle, supra, 130 Cal.App.3d at pp. 292-294.) It explained: "The newly discovered evidence would render a different result probable on retrial of this case. The core of the disagreement is whether the sex act occurred with consent or force. The victim told her story and the appellant told his. The new evidence does more than merely impeach [the victim] — it tends to destroy her testimony by raising grave doubts about her veracity and credibility. Her credibility is central to the proof of the crime. [Citation.]" (Id. at p. 293.)
Similarly, in Huskins, the defendant was convicted of a sexual offense against his daughter, based largely on the testimony of the daughter's foster mother. (People v. Huskins, supra, 245 Cal.App.2d at pp. 860-861.) The newly discovered evidence showed that the foster mother was a paranoid schizophrenic who had also accused her own husband of sexually abusing his daughter. (Id. at pp. 861-862.)
The court held that the trial court had erred by denying the defendant's motion for new trial. (People v. Huskins, supra, 245 Cal.App.2d at pp. 862-866.) It acknowledged that "[o]rdinarily, evidence which merely impeaches a witness is not significant enough to make a different result probable, and . . . ' . . . newly-discovered evidence which would tend merely to impeach a witness is not of itself sufficient ground for granting a new trial.' [Citation.]" (Id. at p. 862.) It concluded, however, "[T]his is one of those exceptional cases with unusual facts in which newly-discovered evidence impeaching the credibility of a prosecution witness makes a different result on retrial probable." (Id. at p. 862.) It explained: "[T]he new evidence in this case does more than merely impeach the main prosecution witness — it tends to destroy her testimony by raising grave doubts about her veracity and credibility. Since [the foster mother] was the sole adult witness connecting the defendant with the charged acts, her credibility is central to the proof of the crime." (Id. at pp. 862-863.)
Here, the newly discovered evidence did not "destroy" Faciane's testimony; it merely impeached him on a collateral point. Moreover, as impeachment evidence, it was cumulative. As defendant concedes, there was already other "evidence casting doubt on Faciane's credibility." Faciane admitted lying to the police. He told them he was at the apartment complex to drop off his sister, when actually he was there to buy marijuana. Also, he told them defendant hit him first, even though he actually hit defendant first. He was further impeached by an admitted attempt to break into a storage container. Finally, Faciane's testimony was partially corroborated. His testimony that defendant said "5150" before attacking was corroborated by the evidence that defendant was, in fact, a member of 5150 MR.
Defendant therefore also argues that the evidence tended to support his testimony that Faciane was the aggressor. He reasons, basically, that people are more likely to start fights when drunk than when sober. Defendant's own testimony, however, was that Faciane and Phillips were together when they confronted him. Immediately after Faciane punched him, Phillips "jumped in." Moreover, even after Faciane left, Phillips kept hitting him. It was stipulated that Phillips "had no trace of alcohol, marijuana, or any other narcotic in his blood." Finally, the victims' wounds were inconsistent with defendant's testimony that he just swung the knife around, without aiming. Thus, the mere fact that Faciane was intoxicated did not strongly support defendant's version of events, as opposed to Faciane's. At a minimum, this was within the trial court's discretion to find.
We therefore conclude that the trial court did not err by denying defendant's motion for new trial.
VIII
DISPOSITION
The judgment with respect to conviction is modified, as follows. On count 1, defendant's conviction is reduced from first degree murder to second degree murder; the gang enhancement and the gang special circumstance are stricken. As thus modified, the judgment with respect to conviction is affirmed. The judgment with respect to sentencing is reversed, and the matter is remanded for resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
KING
J.